Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.
Q: Where do agencies like EPA get the power to create regulations?
A: EPA and other agencies are created by Congress. They also get the power to issue regulations from laws passed by Congress. For instance, the Clean Water Act tells EPA to issue regulations based on the "best available technology" for controlling the discharge of toxic water pollutants.
Q: Who decides whether an agency should start the process to issue a new regulation?
A: Some statutes set deadlines and require agencies to act. In those situations, a court can intervene if the agency misses the deadline. Otherwise, it's mostly up to the agency's discretion whether to start the process (often with a nudge from the White House, of course).
Q: What's the first step in the regulatory process?
A: When an agency has decided to propose a regulation, it prepares an analysis of …
Political Interference from White House Regulatory Office May Have Played a Role
The Labor Department’s emergency COVID standard, released today, is too limited and weak to effectively protect all workers from the ongoing pandemic. The workers left at greatest risk are people of color and the working poor.
Workers justifiably expected an enforceable general industry standard to protect them from COVID-19, and the Center for Progressive Reform (CPR) has been calling for such a standard since June 2020. But what emerged after more than six weeks of closed-door White House review was a largely unenforceable voluntary guidance document, with only health care workers receiving the benefit of an enforceable standard.
The interference with the COVID standard by the White House regulatory office, the Office of Information and Regulatory Affairs (OIRA), sends the wrong signal about the Biden administration's commitment to improving the regulatory review process, which …
In a little-noticed move on Day One, President Joe Biden issued a memo designed to institute a more progressive process for developing new regulations. Such an effort is essential, given that timely, effective regulations will play a key role in achieving Biden-Harris administration's policy agenda. To succeed, however, it must also tackle the conservative philosophy that guides our government's rulemaking process.
Biden's memo focuses on the mechanics of the rulemaking process, and especially two institutions that heavily influence regulatory decisions: centralized, White House review of proposed rules and economics-focused assessments of them. President Reagan and his successors have issued a string of executive orders to govern these institutions. Biden's memo addresses flaws in the current iteration, Executive Order 12866 (along with some other, related orders). Fixing these flaws is necessary to create a more progressive regulatory system that better protects people and the planet.
Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation.
Two things can get sidelined in presidential administration. One is agency expertise. No one in the White House has as much knowledge as agency experts about air pollution, or climate change, or endangered species.
The other thing that gets sidelined is active implementation of the law actually passed by Congress. The White House staff who review regulations care only about costs and benefits. The president and the higher-level staff …
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission.
Presidents since Ronald Reagan have, by executive order, required agencies to submit significant regulatory actions to the White House for review. Academic and public interest observers have variously criticized this review as slow, opaque, chaotic, lawless, and power-grabbing. Yet every president in the intervening years has not only embraced but also deepened the control of the White House over individual regulations.
Even President Obama, who announced early in his first term that he was conducting a top-to-bottom review of this process, ultimately embraced strict White House control over the rulemaking proceedings of the executive agencies. President Trump has taken White House control over rules to a whole different dimension by ordering agencies to revoke two existing rules for every new rule they issue and by …